March 17, 2012

The title of this post is the title of this new article by Kurt Denk now available via SSRN. Here is the abstract:

Despite obvious differences, certain historical and conceptual underpinnings of Catholic death penalty teaching parallel core elements of U.S. death penalty jurisprudence, particularly given the Supreme Court’s expansive yet contested moral reasoning in Kennedy v. Louisiana, which stressed that Eighth Amendment analysis "necessarily embodies a moral judgment." This Article compares that jurisprudence with the Catholic Church’s present, near-absolute opposition to capital punishment, assessing how the death penalty, as a quintessential law and morality question, implicates overlapping sources of moral reasoning. It then identifies substantive concepts that permit Eighth Amendment jurisprudence and the Catholic perspective to be mutually translated, presenting this approach as a means to advance death penalty discourse.

Alaska's interesting experiences with circle sentencing

This interesting new AP piece, headlined "Alaska courts taking new approach to rural justice," reports on a state's willingness to keep trying a non-traditional sentencing process in the hope of achieving better outcomes for all involved. Here are the details:

Alaska Magistrate Mike Jackson of Kake first heard of "circle sentencing" in the mid-1990s, when alcohol-related problems in his village were burgeoning. Kake had higher rates of accidental deaths, child abuse and suicides than just about anywhere in the state.

The idea of forming circles, Jackson learned, was for a moderator to bring together family, friends and others who know a victim or offender to help a judge hand down a fair sentence by considering local history, community beliefs and other views of a defendant's background. It was used after a guilty plea or a conviction.

He tried out the idea in 1999 with a woman convicted of crimes related to her alcohol addiction. She had previously refused in-patient treatment. At the circle, state authorities told her it was her last chance before losing her kids, and her friends and family persuaded her to get help.

"She came back and was sober," said Dinah Aceveda, who helped organize that circle and 66 others since. "She changed her life from that. When you have good people around you in that circle, in that community, that's what can happen."

Circle sentencing is about to be used for the first time in a felony case in Alaska. Jackson said the system recognizes Tlingit traditions and approaches to justice used since time immemorial in ways lost on state courts. "What matters most under state court is punishment and control," said Jackson, who also is a tribal court leader. "Determining guilt and punishment for the offender is the focus, but under circles it's holistic in views of the community and the victim."

In 2003, researchers from the Kennedy School of Government at Harvard University visited Kake and decided to honor the southeast Alaska community for its efforts at justice reform. A report on the town said the circle's successes were occurring where the state court system had repeatedly failed....

[C]ircle justice most often involved cases related to domestic violence, child neglect and minors consuming alcohol, and has expanded little. Concerns have been expressed about unequal punishments for similar crimes, with some worried that people will get off easy. There are specific cases when circles proved ineffective that serve as fodder for critics....

Galena Magistrate Christopher McLain has advocated bringing courts to rural communities and using circles when possible since he took the bench in 2008. He said those familiar critiques miss the point. Judges follow state sentencing guidelines and make the final decision when circles are used, McLain said. And at least as many examples of ineffective outcomes exist in state courts, he said.

"(Circles) let me take community recommendations and craft a sentence that's rehabilitative," he said. "But people don't get off easy. Many times they end up with a harsher punishment, but the point is we realize that we need each other to survive out here, and we're going to have to live with each other after the punishment is over."

March 16, 2012

"Ravi found guilty on 24 of 35 charges in webcam case"

The title of this post is the headline of this local report on the high-profile state criminal trial of a Rutgers student that has been taking place in New Jersey. Here are the basics:

Dharun Ravi has been found guilty of 24 of 35 separate charges by a Superior Court jury here. Following three days of deliberation, the jurors found Ravi guilty of invasion of privacy, bias intimidation, attempted invasion of privacy, tampering with physical evidence, hindering apprehension or prosecution, witness tampering and tampering with physical evidence.

Three of the counts carry a possibility of jail time; they are the bias intimidation charges as well as the hindering apprenhension count. Sentencing has been scheduled for May 21.

In all, the former Rutgers student was charged with 15 counts for using a webcam to spy on his gay roommate’s encounter with another man in their college dorm room in September of 2010.

Media attention at the Middlesex County Courthouse is intense, with more than 100 news gatherers covering the trial. The 12 jurors with three alternates worked their way through a verdict sheet that asked them to decide Ravi’s guilt on 35 different separate questions regarding the 15 counts. The charges included invasion of privacy, attempted invasion of privacy, bias intimidation, tampering with physical evidence, hindering apprehension or prosecution, witness tampering and tampering with physical evidence....

On Sept. 19, 2010 Ravi was alleged to have briefly spied on Clementi and a man known only as M.B. for a few seconds with Molly Wei, a dorm mate who was a resident across the hall from Ravi. Ravi was charged with making a second attempt to spy on them two days later. Clementi jumped off the George Washington Bridge on Sept. 22, 2010. The trial has drawn national media attention because of discussions it has raised regarding cyber-bullying, misuse of social media and anti-gay bias.

Because New Jersey sentencing law is complicated (thanks in part to Apprendi, which notably came out of New Jersey and involved judicial fact-finding about racial bias to increase a sentence), I have no idea what kinds of sentence(s) Dharun Ravi might be facing. Because I have seen reports that Ravi might now also need to fear deportation, constitutional gururs can already begin spotting Padilla-related issues along with Apprendi issues in this high-profile case.

Free from even knowing yet what applicable state sentencing law provides, I am very eager to hear from readers about what kind of sentence they think should (or will) be imposed upon Dharun Ravi following these convictions. I have not followed the case closely enough to have a sense of all the relevant sentencing consideration, but I do sense that the forthcoming sentencing could end up raising a lot of interesting legal and policy issues. Thus, I suspect this may be just the first post in a series as this case turns toward sentencing.

An otherwise inconsequential sentencing affirmance from the Eighth Circuit today in US v. Anderson, No. 10-3387 (8th Cir. Feb. 16, 2012) (available here), caught my attention because the facts justifying the federal conviction seem so innocuous and because the sentencing realities the defendant faced seem so remarkable. Here are snippets from the opinion that made me consider this case blog-worthy:

A jury found Defendant-Appellant Craig Leslie Anderson guilty of being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)....

Concluding that Anderson had perjured himself at trial [by testifying he did not know he possessed the ammunition], the district court applied a two-level enhancement to Anderson's offense level pursuant to United States Sentencing Guidelines § 3C1.1, resulting in an adjusted advisory Guidelines range of 84–105 months. The court then determined that a traditional departure was appropriate based on overstated criminal history pursuant to U.S.S.G. § 4A1.3(b), and adjusted the advisory Guidelines range downward to 77–96 months. Finally, the court granted a variance and imposed a sentence of 45 months' incarceration....

In the statement of reasons for the sentence, the district court explained ... "Anderson's crime is among the least serious felon-in-possession offenses that I have seen. Mr. Anderson possessed old hunting ammunition that appears to have been inadvertently overlooked when law-enforcement officers confiscated his firearms and ammunition in 2005. There is no evidence that Mr. Anderson could have used, or intended to use, the ammunition. I am not aware of any evidence that Mr. Anderson possessed a gun or any hunting gear.... Mr. Anderson's possession can fairly be described as inadvertent."

I also believe Mr. Anderson when he says that he did not know that his possession of the ammunition was illegal.... The State of Minnesota specifically warns felony-level probationers that they may not possess firearms, but the State does not warn that they may not possess ammunition. There are logical reasons for this that have to do with the difference between state and federal law as well as the difference between criminal laws versus conditions of probation. But these types of distinctions may be difficult for a layperson to appreciate....

"I do believe that, if Mr. Anderson had known that he could not possess ammunition, he may not be in the situation that he is in today. For these reasons, I believe that the Guidelines range in this case is too high to serve the purposes of sentencing and that a downward variance is warranted."

In short, the defendant here was convicted of illegal possession of hunting shells, which he inadvertently possessed and likely did not know was illegal for him to possess. Long-standing criminal doctrines about ignorance of the law means that his lack of knowledge of federal law does not allow him to escape liability, but even more remarkable is that the federal sentencing guidelines called for 7 to 9 years in federal prison(!) for the crime of "inadvertent" illegal possession of hunting shells. (Importantly, this high sentencing range was driven up by the defendant's criminal history, though the district judge also concluded that these guidelines also were over-inflated in this case.)

To the district judge's sentencing cre"dit, he decided that he should not send Anderson to federal prison for the better part of a decade for the ghastly crime of "inadvertent" illegal possession of hunting shells. Still, the judge decided that nearly four years in federal prison was necessary for this crime, and the Eighth Circuit panel required merely two sentences at the very end of its opinion to reach the conclusion that the imoposition of this lengthy federal prison term for this crime was reasonable and thus not an "abuse of discretion."

"12 tips for Blagojevich" as he starts his 14 years in federal prison

The Chicago Tribubne has this lengthy article providing prison tips for former Illinois Gov. Rod Blagojevich as he heads for prison. T he piece was written by Jeff Smith, a former Missouri state senator who recently spent a year in at the Federal Correctional Institution in Manchester, Ky. as a result of a campaign-finance violation. Here are some snippets of his fascinating advice:

1. As your grandma probably taught you, God gave you two ears, two eyes and one mouth — use them in proportion....

• Don't ever ask anybody about their crime. If they want to tell you what they did, fine. But you won't know if they're telling the truth. And if you ask and strike a nerve with someone, the result may not be pretty.

• Don't talk about how you got railroaded. So did everyone else.

• Don't ask anything about anyone's family; it will be a sore subject with many, especially those who have not seen or heard from their children or ex-wives in years.

• Don't ever talk about how much time you have. Someone else has more.

2. Embrace your background, but don't try to be a politician....

3. Get in the best shape of your life....

4. Correspond with anyone who writes you....

6. Don't complain about how bad your prison job is, and don't brag about how good it is....

8. Use your unique knowledge and skills to help other inmates....

• Use your legal background to help prisoners who are bringing appeals pro se (representing themselves), but do so quietly so that you aren't swamped with requests.

9. Don't snitch, under any circumstances.

• The only people in prison who have it harder than child molesters are snitches....

• Don't be seen talking to the Cos (correctional officers). Just like you could be cordial to Republicans but not be best friends with them without arousing suspicion among Democrats, you cannot be "friends" with the guards. Sure, there may be gangs and racial/ethnic division among prisoners. But there are really only two teams: inmates versus the prison. When guards try to get you to regale them with stories, resist the impulse to be on stage again. Do not forget this rule.

Colorado DA tells federal prosecutor to stop being a buzz kill in Boulder

As reported in this interesting local article, "Boulder District Attorney Stan Garnett has sent a letter to the top federal prosecutor in Colorado, asking the feds to drop their crack-down on medical-marijuana dispensaries that are abiding by state law." Here is more:

In the letter, dated Tuesday, Garnett writes that Colorado has created a system for regulating medical-marijuana businesses that is working and argues it is not worth the federal government's time to target dispensaries abiding by state law.

"I can see no legitimate basis in this judicial district to focus the resources of the United States government on the medical marijuana dispensaries that are otherwise compliant with Colorado law or local regulation," Garnett wrote in the letter to Colorado U.S. Attorney John Walsh. "The people of Boulder County do not need Washington D.C. or the federal government dictating how far dispensaries should be from schools, or other fine points of local land-use law."

Garnett's letter comes following the most direct crack-down yet in Colorado on dispensaries by federal law enforcement officials. Earlier this year, Walsh sent letters to 23 medical-marijuana dispensaries that were within 1,000 feet of a school, ordering them to close or face civil or criminal punishment. All those ordered to do so shut their doors.

Colorado law establishes a 1,000-foot buffer between dispensaries and schools but also allows communities to vary the distance or grandfather in pre-existing businesses. All the dispensaries that received letters were apparently complying with state and local laws.

But federal law makes all marijuana possession and sales illegal. Drug sales within 1,000 feet of a school bring enhanced penalties. Walsh said he sent the letters because he's concerned that the presence of medical-marijuana businesses near schools may be encouraging the increase the state is seeing in youth use of marijuana....

In his letter, Garnett said federal law enforcement officials should instead focus elsewhere: on terrorism, organized crime or major trafficking of hard drugs like cocaine or methamphetamine. Continuing to target dispensaries, Garnett wrote, "would be very disruptive to communities who have spent significant time and resources exercising their right of local control to balance the competing issues around medical marijuana."

March 15, 2012

As reported in this local article, for the third time in as many years, the legislature in Connecticut is in the midst of debating repeal of the state's death penalty. Here is how the article begins:

For the third time since 2009, the legislature's judiciary committee on Wednesday pondered the fate of Connecticut's death penalty, but those who want to abolish capital punishment believe this may be their year.

"I think there's a real sense of urgency," Ben Jones, executive director of the Connecticut Network to Abolish the Death Penalty, said Wednesday evening, about eight hours into a hearing on the topic. "We debated this so often, we just need to seal the deal."

Jones noted that this year, the two Democratic Senate leaders, President Pro Tem Donald Williams of Brooklyn and Majority Leader Martin Looney of New Haven, were among the first to testify in support of the bill, which would replace the death penalty with life in prison with no possibility of release. And, he said, the NAACP is also making a big push for repeal.

The emotional topic of repealing the state's death penalty drew large crowds to the state Capitol complex but the one individual whose pro-death penalty view has dominated the debate in recent years did not attend. Dr. William Petit, the sole survivor of a horrific home invasion in Cheshire in 2007, has been a familiar presence at past legislative hearings on the topic, but this time, neither Petit nor his sister, Johanna Petit Chapman, was present.

"We firmly believe that the death penalty is the appropriate sanction in certain heinous, cruel and depraved crimes,'' Chapman wrote in an email to reporters. "Let us take the 'c' word out of the discussion. There is no such thing as 'closure' when your loved one is savagely taken from you. There can, however, be adequate and just punishment and that is the death penalty."

The Cheshire case has loomed over the death penalty debate. Last year, a similar bill cleared the committee but did not come up for a vote in the House or Senate after two key Democratic senators pulled their support, citing the ongoing trial of one of the men accused in the Petit killings. Since then, both suspects in the case have been convicted and sentenced to death.

The death penalty bill is "prospective" in nature, meaning it would not apply to the 11 men on Connecticut's death row. Several experts testified that defense attorneys would use abolition of capital punishment to preserve the lives of those currently sentenced to death.

However, a review by the Quinnipiac University School of Law Civil Justice Clinic found that appeals brought by defense lawyers after the death penalty is abolished are not necessarily upheld. After lawmakers in New Mexico banned the death penalty for all new crimes in 2009, a death row inmate appealed his sentence, arguing that once capital punishment has been repealed, it should be repealed for all, regardless of when the crime was committed. A judge in New Mexico rejected that argument.

Sen. John Kissel, a Republican from Enfield, whose district includes several prisons, asked what would happen to those who commit capital felony crimes in the future if capital punishment were replaced with life in prison without the possibility of parole. He said he wants to make sure such prisoners remain segregated from the general prison population and given no perks if the death penalty is repealed.

Seeking early predictions on Southern Union (and Apprendi's future)

This coming Monday, the Supreme Court will hear oral argument on the biggest Apprendicase to come down the pike in a few years. SCOTUSblog has this effective new argument preview posted on the case, and here is how it begins:

On Monday, March 19, the Supreme Court will hear oral argument in Southern Union Co. v. United States, a case that could bring about profound changes in the way courts impose criminal fines, which serve as the principal sanction for organizations, including corporations. The Court will have to determine whether fines are subject to the principle announced in Apprendi v. New Jersey: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” To date, the Court has applied this principle only to the death penalty (Ring v. Arizona) and to sentencing schemes limiting years of incarceration a judge may impose in the absence of specific factual findings (Blakely v. Washington, United States v. Booker, Cunningham v. California, and Oregon v. Ice).

The issue arises in the context of an environmental criminal statute authorizing a prison term and a fine “per day” of violation. The jury was not asked to determine the number of violation days; it returned a general verdict of guilty. However, the court imposed a sentence based on the premise that the violation had occurred for more than one day. If the Supreme Court finds that the trial court engaged in judicial fact finding -- and if Apprendi applies to fines -- the sentence violates due process and the Sixth Amendment right to jury trial.

The decision in this case could turn on the Court’s assessment of the judicial role in imposing fines at the time of the Founders and whether fines -- the sanction for corporate “persons” -- are a fundamentally different punishment from incarceration. Considerations concerning the administration of justice may come into play. Finally, the opinion should clarify the significance of Oregon v. Ice, the Court’s most recent relevant precedent.

Another Southern Union preview can be found in this Greenwire piece, which includes this discussion of some underlying facts:

Seizing on the Apprendi ruling, Southern Union claims that only a jury can decide on the number of days the company was in violation of RCRA. Although a jury deliberated on the question of Southern Union's guilt, it was U.S. District Judge William Smith of the District of Rhode Island who imposed a total of $18 million in fines and fees based in part on how many days the mercury was illegally stored.

Under RCRA, the company faced a criminal penalty of up to $50,000 a day. The government had asserted in the indictment that the company was in violation for 762 days, meaning there was a maximum fine of $38.1 million.

Southern Union had opted to go to trial so it could argue that the mercury had not been abandoned and was therefore not a waste product. The company maintained it had stored the mercury carefully and that it would eventually be recycled. The mercury only became a problem when vandals broke into the facility and spilled some of the substance, which led to an expensive remediation process.

After considering the questions concerning the Apprendi ruling, Judge Smith imposed a $6 million fine and a $12 million community service fee. Smith concluded that the jury had found the company to be in violation for the entire period, which gave him the leeway to impose the penalty.

Southern Union had no luck when it appealed to the Boston-based 1st U.S. Circuit Court of Appeals. In December 2010, the court -- going further than Smith -- held Apprendi didn't apply to financial penalties. It based its ruling in part on a 2009 Supreme Court ruling, Oregon v. Ice, in which the high court, again split 5-4, said that Apprendi was not intended to expand the jury's role beyond what it has done in the past.

Southern Union and its supporters -- which include the National Association of Criminal Defense Lawyers and the U.S. Chamber of Commerce, who filed a joint amicus brief -- say the appeals court is out of sync with other courts around the country that have concluded that criminal penalties are covered by Apprendi....

Solicitor General Donald Verrilli, representing the Obama administration, insisted in his brief that the Supreme Court made clear in the 2009 Iceruling that judges must consider the historical role of the jury in deciding how to draw a line between the role of judges and juries. "This court has long recognized that criminal fines, even significant ones, raise fundamentally different concerns from terms of incarceration or the death penalty," Verrilli said.

The former is a "deprivation of property," while the latter is a "deprivation of liberty or life," he said. Verrilli delved into English common law in making the case that judges traditionally had "more discretion with respect to fines than they did in imposing terms of imprisonment or death."...

Whatever the court rules, it is not likely to directly affect a large number of cases. There are 15 federal statutes that impose fines based on the number of days of a violation, although a number of them concern violations of environmental regulations, including Clean Water Act permitting. "It's a narrow category of cases," said criminal law expert Ryan Scott, an associate professor at Indiana University's Maurer School of Law....

Supreme Court watchers are unsure how the court will rule, in large part because there are four serving justices who were not on the court when Apprendiwas decided and two -- Justice Elena Kagan and Justice Sonia Sotomayor -- have been appointed since Ice was decided. As Scott put it, it is an "unusually difficult one to guess."

I share Professor Scott's view that predicting an outcome, or even the votes of particular justices, in Southern Union is unusually difficult. I can make a plausible prediction that Southern Union could possibly win 9-0 because I doubt that the Court's still-remaining Apprendi dissenters (Justices Breyer and Kennedy) will be distinctly eager to prevent Apprendi's extension into this arena. And yet, in Ice, a one-time (though fickle) Apprendi supporter, Justice Ginsburg, wrote a broad opinion for the Court limiting Apprendi's reach and suggesting that she (as well as Justice Alito, who was another key swing vote in Ice) may be increasingly concerning about what could happen if Apprendi rights were extended into new sentencing settings. If Justice Ginsburg remains very concerned about the expanding the borders of Apprendi-land, I could imagine her (perhaps with the help of the Apprendi-haters) seeking to persuade some of the new Justices to draw another line in the jurisprudential sand here.

As my post title suggests, I am very eager to hear from readers concerning their perspectives on the Southern Union case in particular and on Apprendi jurisprudence more generally now that it is a full dozen years since the Sixth Amendment started playing a big role in sentencing law and policy.

March 14, 2012

"What’s In a Name? A Lot, When the Name is 'Felon'"

The title of this post is the title of this interesting new commentary by Margaret Colgate Love now up at The Crime Report. Here are excerpts from a piece which merits a full read:

“Felon” is an ugly label that confirms the debased status that accompanies conviction. It identifies a person as belonging to a class outside many protections of the law, someone who can be freely discriminated against, someone who exists at the margins of society.

In short, a “felon” is a legal outlaw and social outcast. But the word “felon” does more work than that. It arouses fear and loathing in most of us. I confess that it arouses those visceral feelings in me. I do not want to live or work around felons. I do not want to socialize with them....

I make a living representing people who have been convicted of a crime. They are, for the most part, very interesting and thoughtful people who have a great deal to offer society. In many cases, it is precisely their experience in the criminal justice system that has made them this way.

So it is hard for me to think of my clients as “felons.” And yet that is the label they must bear, in the workplace, in their communities, and in society at large. It is an unhelpful label and in many cases it is deeply unfair. My clients come to me because they hate the label, because they want it removed, because they think they don’t deserve it. And they are right. They are all right.

In the Middle Ages, and even in the early days of our own Republic, felony convictions were hanging affairs, and civil death statutes simply anticipated the impending corporal end. After the Civil War, felonies expanded to include many minor property crimes (Mississippi’s infamous “pig law” is illustrative), and prosecution became a convenient way of disenfranchising and re-enslaving the recently-freed black population.

In the late 20th century, the war on crime made conviction an industry, and reinforced status as punishment. These days, you don’t have to do anything particularly evil to be condemned to what sentencing scholar Nora Demleitner has called “internal exile.” The “felon” label now applies to more than 20 million Americans.

A journalist friend at the John Jay conference pointed out that “felon” is convenient shorthand, helpful for headlines, certainly evocative. How could I argue? But labeling people as “felons” is also fundamentally at war with efforts to reduce the number of people in prison, to facilitate reentry, and to encourage those who have committed a crime, or even many crimes, to become law-abiding and productive citizens....

Skilled writers can find ways to avoid using words that are toxic. Even headline writers can be weaned from them. Journalists play a key role in advancing the cause of social justice, and they do it through the language they use. It is time to junk the label “felon” and restock our language toolkit.

"60-year sentence reinstated for Hurricane Katrina housing scam"

The Louisiana Supreme Court on Tuesday reinstated a 60-year prison sentence for a former Alabama lawmaker who bilked a half-dozen New Orleanians out of $250,000 with the promise of new modular homes after Hurricane Katrina. The court found that Orleans Parish Criminal District Judge Darryl Derbigny didn't abuse his discretion on Feb. 12, 2010, when he sentenced John Colvin to six consecutive 10-year sentences.

Colvin, 65, a former state legislator and water board member in Rainbow, Ala., pleaded guilty in 2009 to six counts of theft.

From the end of 2007 through the spring of 2008, Colvin held himself out as a licensed contractor, though he never registered as one in Louisiana. Colvin invoked God, his mother and children to secure contracts with mostly older residents put out by the storm.

He took from $39,400 to $63,500 from each victim, much of it Road Home money, and did little or none of the promised work. In some cases, his victims said, he left some holes dug or a few stakes in the ground.

A panel of the Fourth Circuit Court of Appeal overturned Derbigny's sentence, citing a 1979 Louisiana Supreme Court decision that states: "For an offender without prior felony record, ordinarily concurrent rather than consecutive sentences should be imposed ..."

Judge Roland Belsome also cited those who spoke on Colvin's behalf -- Alabama Lt. Gov. Jim Folsom sent a letter of support -- along with his lack of a criminal record and his attempt to return $5,000 to one victim before his arrest. But in an odd twist, the appeals panel also said it didn't think a 10-year sentence -- with each count running concurrently -- was enough, considering the "economic and emotional harm" to the victims.

The Supreme Court rendered that opinion moot Tuesday, finding in its 10-page reversal that the 60-year sentence wasn't disproportionate to the offense. Colvin engaged in "a pattern of conduct that clearly reflected more than business ineptitude and was fraudulent from the outset, " the court found.

The court also didn't buy Colvin's expression of remorse and contrition at his sentencing hearing, noting that only a month earlier he had blamed another contractor for botching the jobs and sapping the money. Colvin's attorney, Craig Mordock, didn't immediately return a call for comment.

The 10-page opinion for the Supreme Court of Louisiana is available at this link.

As reported in this local article, which is headlined "Inmate Haugen still seeks execution," a convicted murderer in Oregon is pressing very interesting legal claims in order to get executed. Here are the basics:

Death row inmate Gary Haugen, thwarted in his bid to be put to death, is challenging the execution reprieve that Gov. John Kitzhaber issued in November. The 49-year-old, twice-convicted killer is pursuing a new execution date.

Haugen’s attorney has mailed a motion to the Marion County Circuit Court asking for a new death warrant. In a letter to Kitzhaber released Tuesday, Portland attorney Harrison Latto asserts that the governor exceeded his constitutional authority in issuing Haugen a temporary reprieve. He said Haugen feels trapped in “legal limbo” and subjected to “cruel and unusual punishment.”

“Mr. Haugen does not feel that you are treating him mercifully by forcing him to remain in a kind of legal limbo that will last for an uncertain period of time, potentially as long as seven years, at the end of which he might, or might not be put to death,” Latto wrote. “Putting Mr. Haugen into that position against his will is more accurately described, in his view, as cruel and unusual punishment. While you have every right, of course, to lead a campaign to repeal the death penalty in Oregon, Mr. Haugen should not be forced to serve as a pawn in that effort....

On Nov. 22, Kitzhaber announced that he was halting Haugen’s scheduled Dec. 6 execution. He also said that he won’t allow any executions to occur while he is governor. In canceling Oregon’s first execution in 14 years, the Democratic governor denounced the death penalty in broad terms, describing it as “an expensive and unworkable system that fails to meet basic standards of justice.”...

In challenging the reprieve, Latto maintains it is “legally ineffective and void” because it was filed in court by a previous attorney representing Haugen, who “acted without his knowledge or authorization.”

“He is filing today a motion asking the court to annul that filing,” Latto wrote, referring to Haugen. “An act of this importance cannot be legally accomplished by a lawyer unless he acts according to the express instructions of his client.” Latto also asserts that Kitzhaber exceeded his authority by issuing Haugen a reprieve for an indefinite period of time. A reprieve, he said, must be issued for a specific period, and it must also be accepted by the inmate....

“There is strong legal authority supporting the idea that pardons, commutations, and reprieves are acts that must be based upon the Governor’s individualized judgment that a particular person deserves that relief,” he wrote. “In Mr. Haugen’s case, you made no such judgment. Your action, in contrast, is more in the nature of an attempted nullification of a particular Oregon law. The Governor, under the Oregon Constitution, has no such power.”

The full 4-page letter from Haugen's lawyer to the Governor of Oregon is available at this link, and it is truly fascinating. I would be very interested to hear legal and policy opinions on how officials and judges likely will and/or should respond to Haugen's claims.

Today, as detailed in this official agenda, the US Sentencing Commission is in the midst of a full-day public hearing concerning possible guideline amendments. That agenda includes links to all the submitted written witness testimony, and the discussion of the fraud guidelines and how loss should be calculated in a variety of context should be of extra interest to any and all white-collar practitioners.

Not surprisingly, the Justice Department's testimony on these fronts seems (based on my too-quick scan) to support additional or revised guideline enhancements on a variety of fronts while also apparently opposing the potential adoption of any loss calculation provisions that might favor defendants. Meanwhile, private and public defense attorneys seem to be saying in their testimony (here and here and here) that the fraud guidelines are already too severe. And, providing a distinct (and somewhat parochial) perspective, the testimony from the Probation Officers Advisory Group appears to be (perhaps justifiably) much more concerned with how the guidelines can ensure already complicated loss calculations do not get even more complicated.

For a whole host of reasons, I do not envy the challenges facing the USSC in trying to sort out a clear and sensible path forward in this arena. I strongly feel that the loss rules are a mess and the source of considerable problems, but I fear that sensible reform requires a broad (and difficult) reassessment of just when and how loss should be a key factor in the sentencing of white-collar offenders and also requires much greater attention to mens rea factors that, problematically, rarely get enough attention at sentencing because these factors are impossible to readily quantify.

March 13, 2012

Notable comments on sentencing policy reform from AAG Breuer

This DOJ release, headlined "Assistant Attorney General Lanny A. Breuer Speaks at the Benjamin N. Cardozo School of Law," provides the text of a speech given today by the head of Justice Department's Criminal Division. Intriguingly, the text includes a lot of sentencing reform discussion and merits a full read. These notable passages seemed especially worth highlighting:

Although the Criminal Division’s primary mission is to investigate and prosecute crime, because we are in Washington, D.C., the division also plays a unique role in the development of criminal law policy. And I consider it to be a critical aspect of the Division’s work to advocate for reforming those aspects of the criminal justice system that we view as not working, or in need of improvement....

Today, I want to tell you about one example in particular, involving sentencing policy....

Twenty-six years ago, in the Anti-Drug Abuse Act of 1986, Congress instituted a stringent sentencing policy that created, among other things, an extreme difference in sentencing policy for crack cocaine and powder cocaine offenses....

Data compiled by the U.S. Sentencing Commission indicated that, among other effects, the extreme disparity in sentences for crack and powder cocaine offenses had a disproportionate impact on African Americans. For example, in 2006, according to the commission, 82 percent of individuals convicted of federal crack cocaine offenses were African American, while just 9 percent were white.

As a result, the crack and powder cocaine regime came to symbolize a significant unfairness in the criminal justice system, and the Sentencing Commission and others began advocating many years ago for the 100:1 ratio to be reduced. But it was not until 2010, when President Obama signed the Fair Sentencing Act, or FSA, into law that something was done about it.

Early in this administration, the Justice Department began advocating to completely eliminate the disparity in crack and cocaine sentencing, and reduce the ratio to 1:1. Indeed, days after I joined the Justice Department, in 2009, I was proud to testify before Congress on behalf of the administration in favor of eliminating the disparity.

The FSA reduced the ratio from 100:1 to 18:1. In doing so, it did not go as far as we had urged. But the act was nevertheless hugely important, going a long way toward eliminating the appearance of racial bias in the sentencing system.

Of course, our work in the area of sentencing is not done. As I’m sure many of you know, the U.S. Sentencing Guidelines went into effect in 1987, prescribing specific sentencing ranges for particular crimes, depending upon the defendant’s criminal history and other factors. In 2005, however, the U.S. Supreme Court decided in the case of Booker v. United States, that federal judges could treat the sentencing guidelines as advisory only. And there is evidence that unwarranted sentencing disparities have been increasing in recent years. One area among others in which we have seen significant such disparities is financial fraud. With increasing frequency, federal district courts have been sentencing fraud offenders -- especially offenders involved in high-loss fraud cases -- inconsistently and without regard to the federal sentencing guidelines. For example, we have seen defendants in one district sentenced to one or two years in prison for causing losses of hundreds of millions of dollars while defendants in another district receive 10 or 20 years in prison for causing losses a fraction of the size. This is another challenge in sentencing that we will need to address in the coming months and years.

The Fair Sentencing Act is just one example, albeit a very important one, of many I could give you where Criminal Division lawyers and others in the department have worked hard to advance needed legislation and reform an aspect of the criminal justice system in need of repair. Your own Benjamin Cardozo once said, “Justice is not to be taken by storm. She is to be wooed by slow advances.” In Washington, certainly, change rarely comes quickly, and because it is always the product of compromise, usually no one gets exactly what they were hoping for. That was indeed the case with respect to the Fair Sentencing Act. At the same time, when you see what is involved in moving a dramatic piece of legislation, or reforming something as fundamental as sentencing policy, such “slow advances” represent enormous achievements.

I adore the notion of seeking to "woo" Lady Justice though slow advances; extending the metaphor, I think we might well view debates over sentencing reform as a product of a number of different suitors pitching woo at Lady Justice.

"The Delaware Death Penalty: An Empirical Study"

The title of this post is the title of this new piece on SSRN coming from a quintet of Cornell scholars well known for both death penalty work and empirical work. Here is the abstract:

This article is part of a symposium that honors David Baldus, a great scholar and great man, a quiet man with a strong passion for justice. We study the operation of Delaware’s death penalty in the modern era of capital punishment. Our conclusions consist of three main observations.

First, Delaware’s reversal rate in capital cases, 44 %, while substantial, is also substantially less than that of other jurisdictions. This may not be surprising, given Delaware’s emphasis for much of the time period on judge sentencing and that jury verdicts offer more opportunities for reversal. Indeed, reversal rates during the jury sentencing period approximate the national average.

Second, judge sentencing in Delaware results in more death sentences, a result consistent with greater harshness being the motivation behind the statutory change to judge sentencing. This effect, is more pronounced in Delaware than in other states.

Third, we find a dramatic disparity of death sentencing rates by race, one substantially more pronounced than in other jurisdictions. Race matters in capital sentencing, as David Baldus told us more than a quarter of century ago, and we need to continue to pursue knowledge about where, when, and how it matters.

As my students (and reader of this blog) often hear from me, I see any and every issue of public policy concern to really be a crime and punishment issue in some way. For those who might be inclined to doubt this global (and self-serving) persepctive, I cannot help but spotlight this article I came across in the February 2012 issue of Theoretical Criminology. The article is headlined "Dire forecast: A theoretical model of the impact of climate change on crime," and here is the abstract:

After providing an overview of climate change and its effects, this article draws on the leading crime theories to discuss the potential impact of climate change on crime. It is argued that climate change will increase strain, reduce social control, weaken social support, foster beliefs favorable to crime, contribute to traits conducive to crime, increase certain opportunities for crime, and create social conflict. An overall model of climate change and crime is then presented, along with suggestions for research. Even though neglected by criminologists, there is good reason to believe that climate change will become one of the major forces driving crime as the century progresses.

I have often (seriously) urged public policy makers to pitch government spending on education as a form of investment in crime reduction, and this article leads me to (jokingly) urge climate change advocates to consider seizing upon a "tough on crime" mantra.

Notable new data on federal criminal caseload in FY11

Via How Appealing, I learned of the Administrative Office of the U.S. Courts issuing this news release today, which carries the title "Federal District Court Workload Increases in Fiscal Year 2011." Here are snippets, and I have bolded data suggesting the federal drug war continues to grow in size and significance:

Filings of criminal cases (including transfers) was largely unchanged (up 12 cases to 78,440) in FY 2011, but the number of criminal defendants rose 3 percent to set a new record of 102,931. Drug offenses continued to be the crimes most commonly prosecuted in the district courts, accounting for 31 percent of all defendant filings. Twenty-eight percent of all defendant filings were associated with immigration offenses. The number of defendants accused of immigration offenses declined for the first time since 2006, dropping 3 percent to 28,239. The number of defendants charged with fraud offenses rose 3 percent to 12,973 and the most notable increase was in defendants charged with attempt and conspiracy to defraud, which grew 34 percent to 2,239. Growth in filings also occurred for defendants charged with firearms and explosive offenses, sex offenses, property offenses, and general offenses....

The number of persons under post-conviction supervision on September 30, 2011, was 129,780, an increase of 2 percent over the total one year earlier. Persons serving terms of supervised release at the end of FY 2011, following release from a correctional institution, increased 2 percent over the prior year’s total to reach 105,037, and accounted for 81 percent of all persons under supervision.

Forty-seven percent of persons under post-conviction supervision had been convicted of drug offenses, 22 percent had been convicted of property offenses, and 12 percent had been convicted of firearms offenses. These percentages remained unchanged from 2010. The proportion of post-conviction cases terminated successfully remained unchanged at 71 percent.

Regular readers may recall some recent comments from Justice Scalia complaining about too many routine criminal matters (particularly drug cases) coming into the federal courts (discussed in posts here and here). Seems like the data trend reported here concerning the FY 2011 caseload will not warm the Justice's heart.

Two recent local article out of California provide interesting windows into the marijuana muddle in that state. First, this recent article from the Los Angeles Times, headlined "Effort to put marijuana legalization measure on ballot is in disarray," reveals that would-be pot legalizers cannot get together on how best to move forward with a new reform initiative. Here is how that interesting piece starts:

Just weeks before the deadline for state ballot initiatives, the effort to put a marijuana legalization measure before voters in the general election is in disarray as the federal government cracks down on medical cannabis and activists are divided on their goals.

After Proposition 19 received 46% of the vote in 2010, proponents took heart at the near-miss. They held meetings in Berkeley and Los Angeles and vowed to put a well-funded measure to fully legalize marijuana on the 2012 ballot, when the presidential election would presumably draw more young voters.

Instead, five different camps filed paperwork in Sacramento for five separate initiatives. One has given up already and the other four are teetering, vying for last-minute funding from a handful of potential donors.

Backers need more than $2 million to hire professional petitioners to get the 700,000-plus signatures they say they need by April 20 to qualify for the ballot. But they are getting little financial support from medical marijuana dispensaries that have profited from laws that pot activists brought forth in earlier years.

Certainly, some dispensaries cannot help because they are paying large legal bills to fend off the federal government. But like growers, dispensary operators know that broader legalization could lower prices and bring more competitors into their business.

Meanwhile, this new front-page article in the Sacramento Bee , headlined "California Supreme Court's daunting task: Unite pot-dispensary rulings," highlights that sorting out current pot law is as challenging as charting any future reform efforts. Here is how this piece gets going:

When it comes to rulings on medical marijuana, California courts have a case of multiple personality disorder. A flurry of recent, conflicting decisions by state appellate courts on whether cities can ban marijuana stores or be forced to allow them is setting up a landmark review by the California Supreme Court.

The state's high court recently agreed to accept four cases involving marijuana dispensaries. Two more cases may be on the way, including the appeal of a Feb. 29 ruling in Orange County that said cities can't ban cannabis stores but that such stores have to grow all of their pot on site -- a requirement dispensaries say is impossible to satisfy.

"It's chaos," said Dale Gieringer, California director for the National Organization for Reform of Marijuana Laws. "We're going to have to wait for the Supreme Court to sort this out."

The legal confusion is growing as the federal government cracks down on marijuana providers. The enforcement actions by the U.S. attorneys won't be affected by the state court cases.

State appeals courts have differed on how the federal ban on marijuana should affect cities and counties in a state that permits medical use. One key ruling said federal law prevents cities from allowing dispensaries; another said it can't be used as an excuse to ban them. "I've never seen anything like this," said Joe Elford, legal counsel for Americans for Safe Access, a group advocating for medical marijuana users.

It could be a year or two before the state Supreme Court can clarify the legal haze. In the meantime, some advocates and lawyers say it may be up to the Legislature to pass new laws to deal with the conflicting rulings.

I suspect state and federal courts will be busy with marijuana-related legal issues for many years to come, especially because state efforts to legalize medical marijuana (or more) are continuing to grow in number and strength while both federal and local authorities still seem resistant or even hostile to dealing with the legal changes and difficult practicalities that varied pot reform efforts have engendered. Interesting times (which, as a matter of public policy, may prove beneficial only to lawyers and bloggers).

As reported in this local press article, which is headlined "Court rules for homeless sex offender who didn't register address," today the Supreme Court of Wisconsin addressed the registration requirements for homeless sex offenders. Here are the basics:

William Dinkins Sr. spent nine years in prison for a sex crime, so he had to register as sex offender before he got out in 2008. But Dinkins had nowhere to go, and no address to provide within 10 days of his release, so he was charged and convicted of a new felony— violating the sex offender registration law.

The Court of Appeals reversed and on Tuesday the state Supreme Court upheld that decision. "In isolation, the penalty subsection of the statute appears to criminalize the failure to provide required information — without regard to the registrant's ability to provide that information," the court found.

The state argued that Dinkins could have listed a park bench or some other street location where he intended to sleep in order to comply with the law. The majority opinion makes clear that not all homeless offenders would be exempt from registration, but that listing a bench or doorway would be an unreasonable interpretation of the law in Dinkins' case.

Justice Annette Ziegler, in a harsh dissent joined by Justice Michael Gableman, accuses the majority of creating "a registration loophole for arguably some of the most dangerous sex offenders: those whose whereabouts are unknown and who are otherwise not subject to supervision by the Department of Corrections."

All the opinions in Wisconsin v. Dinkins, which are available at this link and run more than 50 pages, make for interesting reading concerning an issue that is arising in nearly every jurisdiction.

In unrelated (but weirdly connected) news, this other new story discusses an effort by a private company to turn homeless people into wireless network providers under the headlined "Homeless people turned into walking Wi-Fi hotspots in 'charitable experiment'." Perhaps we might kill two bird with one stone by forcing homeless sex offenders to become Wi-Fi hotspots and then enable their tracking via this internet connection. And though this may all sound like a joke, if homeless sex offenders were to become a means for people to get free and fast internet access, perhaps more people would be willing to have these sex offenders in and around their neighborhoods.

"Soldier could face death penalty in Afghan killings, Panetta says"

The title of this post is the headline of this new CNN report, which highlights how the hottest issue of international relations is now also a sentencing story:

The U.S. Army soldier accused of killing 16 Afghan men, women and children in a house-to-house shooting rampage could face the death penalty, Defense Secretary Leon Panetta said. Panetta spoke to reporters as he flew to the Central Asian nation of Kyrgyzstan for high-level talks Tuesday....

An American sergeant is suspected of shooting nine children, three women and four men in two villages near his combat outpost in southern Afghanistan on Sunday. He turned himself in after the killings, the military said. The Army's Criminal Investigation Command is leading the investigation. The suspect has not been charged....

Leaders from across Afghanistan's fragmented political terrain have expressed anger and outrage over the attack in the district of Panjwai in Kandahar province. Karzai has condemned the weekend bloodshed as "unforgivable." Afghanistan's parliament has demanded a public trial for the suspect, and the Afghan Taliban have described U.S. troops as "sick-minded American savages" and vowed to exact revenge....

Sunday's killings have brought a deluge of high-level statements from Washington expressing shock, sadness and insistence that the U.S. mission in Afghanistan would stay on course....

The still-unidentified suspect in the attack served three tours of duty in Iraq before being deployed to Afghanistan, said Gen. John Allen, the U.S. and NATO commander in Afghanistan. A U.S. military official, who asked not to be named because he was talking about an ongoing investigation, said the suspect is an Army staff sergeant who arrived in Afghanistan in January.

During the suspect's last deployment, in 2010, he was riding in a vehicle that rolled over in a wreck, according to a senior Defense Department official, who also spoke on condition of anonymity. The sergeant was diagnosed with a traumatic brain injury after the wreck but was found fit for duty after treatment, the official said.

March 12, 2012

"Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments"

The title of this post is the title of this notable new paper by Richard Re and Christopher Re, which is now available via SSRN. Here is the abstract:

The Reconstruction Amendments are justly celebrated for transforming millions of recent slaves into voting citizens. Yet this legacy of egalitarian enfranchisement had a flip side. In arguing that voting laws should not discriminate on the basis of morally insignificant statuses, such as race, supporters of the Reconstruction Amendments emphasized the legitimacy of retributive disenfranchisement as a punishment for immoral actions, such as crimes. Former slaves were not just compared with virtuous military veterans, as commentators have long observed, but were also contrasted with immoral criminals. The mutually supportive relationship between egalitarian enfranchisement and punitive disenfranchisement — between voting and vice — motivated and shaped all three Reconstruction Amendments. Counterintuitively, the constitutional entrenchment of criminal disenfranchisement facilitated the enfranchisement of black Americans. This conclusion complicates the conventional understanding of how and why voting rights expanded in the Reconstruction era.

Criminal disenfranchisement’s previously overlooked constitutional history illuminates four contemporary legal debates. First, the connection between voting and vice provides new support for the Supreme Court’s thoroughly criticized holding that the Constitution endorses criminal disenfranchisement. Second, Reconstruction history suggests that the Constitution’s endorsement of criminal disenfranchisement extends only to serious crimes. For that reason, disenfranchisement for minor criminal offenses, such as misdemeanors, may be unconstitutional. Third, the Reconstruction Amendments’ common intellectual origin refutes recent arguments by academics and judges that the Fifteenth Amendment impliedly repealed the Fourteenth Amendment’s endorsement of criminal disenfranchisement. Finally, the historical relationship between voting and vice suggests that felon disenfranchisement is specially protected from federal regulation but not categorically immune to challenge under the Voting Rights Act.

The government appeals the sentence imposed by the district court upon Ahmed Ressam, the so-called “Millennium Bomber,” as substantively unreasonable. We review a challenge of that nature under what the Supreme Court has described as “the familiar abuse-of-discretion standard of review.” Gall v. United States, 552 U.S. 38, 46 (2007).

Ressam was convicted by a jury on nine counts of criminal activity1 in connection with his plot to carry out an attack against the United States by detonating explosives at the Los Angeles International Airport, commonly known and referred to by its airport code “LAX.” His plan was for the attack to occur on the eve of the new millennium, December 31, 1999. The advisory Sentencing Guidelines imprisonment range for Ressam’s convictions was calculated by the district court to be 65 years to life. That calculation has not been challenged by either party. The district court sentenced Ressam to a term of imprisonment of 22 years, plus five years of supervised release.

Upon our review of the record, we have a definite and firm conviction that the district court committed a clear error of judgment in sentencing Ressam as it did. As a result, we conclude that the sentence imposed by the district court was substantively unreasonable. We vacate the sentence and remand the case to the district court for resentencing.

The full opinion (which includes a concurrence and a dissent) runs 73 pages and is likely to justify future posts once I am back at my desk.

Taking stock of Michigan's interests in JLWOP issues before SCOTUS

A week from tomorrow, the US Supreme Court will hear oral argument in Jackson v. Hobbs and Miller v. Alabama, two cases concerning the constitutionality of sentencing a 14-year-old killer to life without parole. As I have said before, all the primary briefing and amicus briefing in Jackson (linked here) and Miller (linked here) suggest that many SCOTUS Justices are likely to find these cases quite vexing in the wake of their Eighth Amendment work in Roper and Graham.

And, as a new series of articles appearing in local papers, there are many states beyond these involved in the prosecutions before SCOTUS that will be following these cases very closely. In particular, as this article from Michigan highlights, a few states that never before had to worry much about the Supreme Court's Eighth Amendment jurisprudence might have its criminal justice world rocked by Jackson and Miller. The article appears to be the first in a week-long series gearing up for the SCOTUS arguments, and it is headlined "Judgment Day for Michigan's juvenile lifers: The U.S. Supreme Court considers banning life without parole for minors." Here are some excerpts:

He was 14 years, 11 months and 1 day old. That night TJ Tremble rode his bike to the home of Peter and Ruth Stanley. He had the .22-caliber rifle given him by his dad. He had alcohol in his belly, some also from his dad. And, police say, he had murder on his mind.

Before daylight, the Michigan youth would be behind bars for the rest of his life. Or maybe not. Next week, the U.S. Supreme Court will hear arguments on whether mandatory life sentences are too cruel for anyone so young. It will be exactly 14 years, 11 months and 1 day since Tremble got on his bike.

Now 29, is it possible he has changed in the second half of his life, or that he can change with more time? Should he at least have the consideration to one day walk free? Or does death make it different?

In a state with more “juvenile lifers” than almost any other, the answers will resonate throughout Michigan as the high court addresses this: Are life sentences, without any chance of parole, unconstitutional even for juveniles who commit unthinkable crimes? If the court’s earlier rulings are an indication, the answers could be yes....

An MLive Media Group investigation last November detailed how mandatory sentencing laws and get-tough reforms propelled Michigan near the top of the nation in juvenile lifers. Only Pennsylvania has more.

Nearly two dozen inmates were profiled. Several had not committed the killing, but were present. Sometimes the accomplices got more time than the killer, a quirk of mandatory sentencing laws, rejected pleas and juries.

In the midst of the series, the Supreme Court announced it would consider whether juveniles are too impulsive, their brains too underdeveloped, their remaining lives too long to receive the same sentences as adults in death cases.

This story, and stories to come this week, are meant to explore what that could mean for Michigan. At present, 359 inmates are serving life in the state for crimes committed as minors, one out of seven nationally, according to MLive’s updated analysis. The number was one higher until last month, when a prisoner from Kalamazoo was resentenced to a parolable term -- 33 years after he fled a grocery store robbery. His partner stayed behind and killed the owner.

Six of Michigan’s 359 were 14 at the time of their crime -- the same as two inmates whose cases are being considered by the Supreme Court....

The nation’s youngest lifers are small compared to the 2,500 overall. Seventy-three were 14 and 13 at the time of their crimes, according to Supreme Court filings. The six serving time in Michigan for crimes as 14-year-olds are all males, as are most of the state’s juvenile lifers. Unlike others, they are equally split between blacks and whites, and rural and urban backgrounds.

That’s contrary to the state’s juvenile lifer population overall: 69 percent black and largely from urban areas, according to MLive’s analysis. Most were 17 at the time of their crime, but 45 percent were 16 and younger. Wayne County sentenced the most, 41 percent, followed well back by Oakland, Genesee, Kent and Saginaw counties.

Of the class of 14-year-old lifers, all were sentenced after Jan. 1, 1997. That’s when the age group was added to those who prosecutors could automatically try as adults for serious crimes.

Making the case for the use of the federal death penalty

Long-time readers may recall that I believe there are some uniquely strong arguments for use of the death penalty in extreme cases by the federal criminal justice system. I am thus intrigued and pleased to see this new piece on SSRN by Michele Martinez Campbell, which is titled "Federalism and Capital Punishment: New England Stories." Here is the abstract:

Application of the federal death penalty to crimes committed in states that have abolished capital punishment is a tiny problem with a disproportionately powerful scholarly impact. Federal death sentences represent only 0.53% of death sentences imposed in the United States. Even more striking, only six individuals, out of 3,242 on death row nationwide, currently await execution on federal capital charges for crimes committed in states that have abolished capital punishment. Yet, in an era of alarmism over the federal government’s role in enforcing criminal laws, an increasing body of scholarly literature has focused on the federalism concerns posed by this rare capital punishment practice. Overwhelmingly, scholars have argued that federal death sentences should be constitutionally impermissible for crimes committed within the borders of abolitionist states strictly on federalism grounds.

This Article examines the prevailing scholarly view that federalism concerns trump Supremacy Clause arguments and render the federal death penalty unconstitutional when applied within the boundaries of abolitionist states and offers a different view. It argues that, contrary to prevailing scholarly wisdom, courts have correctly permitted the federal government to dictate its own sentencing practices given prevailing Supremacy Clause precedent; and moreover that there are two major policy advantages in having federal authorities bring capital charges when particularly egregious cases arise in abolitionist states. First, federal capital prosecution can serve as a “safety valve,” insulating local communities from political pressures that might otherwise lead to more widespread application of capital punishment or derail state abolitionist movements. And second, federal capital charges provide opportunities for uniformity of application that may address longstanding concerns regarding racial inequities in the imposition of death sentences.

March 11, 2012

Could and should defendants and their attorneys seek to "crash" justice system by demanding trials?

The question in the title of this post is prompted by this provocative opinion piece by my colleague Michelle Alexander, which appears in today's New York Times. The piece is headlined "Go to Trial: Crash the Justice System," and here are excerpts:

After years as a civil rights lawyer, I rarely find myself speechless. But some questions a woman I know posed during a phone conversation one recent evening gave me pause: “What would happen if we organized thousands, even hundreds of thousands, of people charged with crimes to refuse to play the game, to refuse to plea out? What if they all insisted on their Sixth Amendment right to trial? Couldn’t we bring the whole system to a halt just like that?”

The woman was Susan Burton, who knows a lot about being processed through the criminal justice system....

I was stunned by Susan’s question about plea bargains because she — of all people — knows the risks involved in forcing prosecutors to make cases against people who have been charged with crimes. Could she be serious about organizing people, on a large scale, to refuse to plea-bargain when charged with a crime? “Yes, I’m serious,” she flatly replied.

I launched, predictably, into a lecture about what prosecutors would do to people if they actually tried to stand up for their rights. The Bill of Rights guarantees the accused basic safeguards, including the right to be informed of charges against them, to an impartial, fair and speedy jury trial, to cross-examine witnesses and to the assistance of counsel.

But in this era of mass incarceration — when our nation’s prison population has quintupled in a few decades partly as a result of the war on drugs and the “get tough” movement — these rights are, for the overwhelming majority of people hauled into courtrooms across America, theoretical. More than 90 percent of criminal cases are never tried before a jury. Most people charged with crimes forfeit their constitutional rights and plead guilty.

“The truth is that government officials have deliberately engineered the system to assure that the jury trial system established by the Constitution is seldom used,” said Timothy Lynch, director of the criminal justice project at the libertarian Cato Institute. In other words: the system is rigged.

In the race to incarcerate, politicians champion stiff sentences for nearly all crimes, including harsh mandatory minimum sentences and three-strikes laws; the result is a dramatic power shift, from judges to prosecutors.

The Supreme Court ruled in 1978 that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial. Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for a first-time drug offense did not violate the Eighth Amendment’s ban on cruel and unusual punishment.

No wonder, then, that most people waive their rights....

On the phone, Susan said she knew exactly what was involved in asking people who have been charged with crimes to reject plea bargains, and press for trial. “Believe me, I know. I’m asking what we can do. Can we crash the system just by exercising our rights?”

The answer is yes. The system of mass incarceration depends almost entirely on the cooperation of those it seeks to control. If everyone charged with crimes suddenly exercised his constitutional rights, there would not be enough judges, lawyers or prison cells to deal with the ensuing tsunami of litigation. Not everyone would have to join for the revolt to have an impact; as the legal scholar Angela J. Davis noted, “if the number of people exercising their trial rights suddenly doubled or tripled in some jurisdictions, it would create chaos.”

Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat). Either action would create a crisis and the system would crash — it could no longer function as it had before. Mass protest would force a public conversation that, to date, we have been content to avoid.

In telling Susan that she was right, I found myself uneasy. “As a mother myself, I don’t think there’s anything I wouldn’t plead guilty to if a prosecutor told me that accepting a plea was the only way to get home to my children,” I said. “I truly can’t imagine risking life imprisonment, so how can I urge others to take that risk — even if it would send shock waves through a fundamentally immoral and unjust system?”

Susan, silent for a while, replied: “I’m not saying we should do it. I’m saying we ought to know that it’s an option. People should understand that simply exercising their rights would shake the foundations of our justice system which works only so long as we accept its terms. As you know, another brutal system of racial and social control once prevailed in this country, and it never would have ended if some people weren’t willing to risk their lives. It would be nice if reasoned argument would do, but as we’ve seen that’s just not the case. So maybe, just maybe, if we truly want to end this system, some of us will have to risk our lives.”

The nation’s largest private prison company made an enticing offer to 48 states that went something like this: We will buy your prison now if you agree to keep it mostly full and promise to pay us for running it over the next two decades. Despite a need for cash, several states immediately slammed the door on the offer, a sign that privatizing prisons might not be as popular as it once was.

Corrections Corporation of America sent letters to the prison leaders in January, saying it had a pot of $250 million to buy facilities as part of an investment. The company is trying to capitalize on the landmark deal it made with Ohio in the fall by purchasing a facility, the first state prison in the nation to be sold to a private firm.

Prison departments in California, Texas and Georgia all dismissed the idea. Florida’s prison system said it doesn’t have the authority to make that kind of decision and officials in CCA’s home state of Tennessee said they aren’t reviewing the proposal. The states refused to say exactly why they were rejecting the offer....

Critics of private prisons called the offer a backdoor way to delay the sentencing reform movements that have sprung up in many states looking to cut prison budgets. Lawmakers in many conservative states that once eagerly passed tough-on-crime laws are now embracing alternative sentences for low-level offenders who would otherwise be locked up.

CCA said selling a prison to a private firm doesn’t block states from pursuing sentencing reform. The company also said it was still too early to say whether any state would take them up on the bid. “It was an outreach letter making them aware of these offers, it’s yet another tool in the toolbox,” said company spokesman Steve Owen. “We can design and build and own facilities from scratch or manage government facilities, but this is a third business model.”...

The private prison industry boomed in the late 1980s and 1990s as states sought cheaper ways to jail people and voters began resisting building more prisons. But efforts to privatize prisons have become highly-charged political debates in many states, partly because a sale often requires legislative approval by the governor.

In Louisiana, lawmakers last year defeated Gov. Bobby Jindal’s proposal to privatize and sell several state prisons to generate $90 million. Relatives of prison employees aggressively fought the move, fearing that they would get lower pay and less benefits working for a private firm. An effort to privatize a chunk of Florida’s prisons also met stiff opposition from lawmakers in February. They blocked what would have been the largest prison privatization in the U.S.

Reductions in "The Gray Box" another silver lining of lean corrections budgets

On the front-page of my New York Times today is this lengthy article headlined "Prisons Rethink Isolation, Saving Money, Lives and Sanity." The piece reinforces my sense that a down economy and lean budget times have had a number of positive impacts on criminal justice system, and here are excerpts:

The transformation of the Mississippi prison has become a focal point for a growing number of states that are rethinking the use of long-term isolation and re-evaluating how many inmates really require it, how long they should be kept there and how best to move them out. Colorado, Illinois, Maine, Ohio and Washington State have been taking steps to reduce the number of prisoners in long-term isolation; others have plans to do so. On Friday, officials in California announced a plan for policy changes that could result in fewer prisoners being sent to the state’s three super-maximum-security units.

The efforts represent an about-face to an approach that began three decades ago, when corrections departments — responding to increasing problems with prison gangs, stiffer sentencing policies that led to overcrowding and the “get tough on crime” demands of legislators — began removing ever larger numbers of inmates from the general population. They placed them in special prisons designed to house inmates in long-term isolation or in other types of segregation.

At least 25,000 prisoners — and probably tens of thousands more, criminal justice experts say — are still in solitary confinement in the United States. Some remain there for weeks or months; others for years or even decades. More inmates are held in solitary confinement here than in any other democratic nation, a fact highlighted in a United Nations report last week.

Humanitarian groups have long argued that solitary confinement has devastating psychological effects, but a central driver in the recent shift is economics. Segregation units can be two to three times as costly to build and, because of their extensive staffing requirements, to operate as conventional prisons are. They are an expense that many recession-plagued states can ill afford; Gov. Pat Quinn of Illinois announced plans late last month to close the state’s supermax prison for budgetary reasons.

Some officials have also been persuaded by research suggesting that isolation is vastly overused and that it does little to reduce overall prison violence. Inmates kept in such conditions, most of whom will eventually be released, may be more dangerous when they emerge, studies suggest.

Christopher B. Epps, Mississippi’s commissioner of corrections, said he found his own views changing as he fought an American Civil Liberties Union lawsuit over conditions in the prison, which one former inmate described as “hell, an insane asylum.”

Mr. Epps said he started out believing that difficult inmates should be locked down as tightly as possible, for as long as possible. “That was the culture, and I was part of it,” he said. By the end of the process, he saw things differently and ordered the changes. “If you treat people like animals, that’s exactly the way they’ll behave,” he now says.

Coincidentally, the Dart Society, which describes its mission as seeking "to connect and support journalists worldwide who advance the compassionate and ethical coverage of trauma, conflict and social injustice," has its Spring 2012 issue devoted to the topic of solitary confinement via a multimedia investigation titled "The Gray Box." The video and article in the series make a fitting and moving companion to this notable new piece from the New York Times.